Kenna: When can you swear on television and the radio?

A few years ago, I started noticing the “s” word being spoken by characters on television shows during prime time.

How is that allowed I wondered? I know as a volunteer radio disc jockey I’m not allowed to play songs with that word (and several others) in the lyrics before 10 p.m., so what gives?

It turns out there are very few hard and fast rules when it comes to what may not be aired under the regulations of the Federal Communications Commission. When I say “few,” I don’t mean “none” – it would certainly violate FCC rules to air a television show in prime time on broadcast TV where a character clearly uses the “f” word over and over in a sexually explicit manner. But there are a lot of conditions in that hard and fast example – let’s unpack them.

Broadcast vs. Cable and Satellite, etc.: Broadcast TV and radio are governed by stricter rules than other outlets (e.g., cable and satellite stations). Contrary to popular opinion, the FCC does, in fact, have jurisdiction over these non-broadcast services, it’s just that the rules are different. So, the short answer is that broadcast stations still can’t generally use the “s” word, and when you’ve heard that it is probably on a cable show like “The Walking Dead.” But even that’s not completely true ...Fleeting Expletives: Until 2004, the FCC did not enforce so-called “fleeting expletives” (or fleeting nudity) – prohibited words or images that briefly “slip out,” so to speak. But then the two events happened that ruined it for everyone, the Janet Jackson wardrobe malfunction at the Super Bowl and Cher’s f-bomb during the Golden Globes. The FCC then started to fine even fleeting expletives, but the Supreme Court ruled in 2012 that the FCC did not give enough notice of its changed policy. However, the court did say that in the future, the FCC might be free to enforce these given enough notice and policy development. That hasn’t happened, so presumably fleeting expletives are safe for now, but broadcasters are probably still wise to be careful.Obscenity vs. Indecency vs. Profanity: According to the FCC, “obscene” basically means hard-core pornography, “indecent” means “sexual or excretory material that does not rise to the level of obscenity,” and “profane” means “language includes those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a nuisance.” Each is regulated separately, and because the First Amendment provides some (but not absolute) protection for indecent and profane language, it is allowed in cable and satellite subscription services, but obscenity is barred from even those, as according to the FCC, obscenity has no First Amendment protection (although that makes one wonder how hard core pornography is allowed to be shown on the internet if that were true). Violence is not regulated at all, although the FCC at one point “opened an inquiry” about it.Profane Words and Contexts: In theory, the FCC says no words are always prohibited from prime-time broadcasts, and it’s the context that counts. So for instance, the “d-word” is OK if used as an insult (“you’re such a d-word,”), but not OK if used in a sexually explicit context (you’ll have to use your imagination for that example). In practice, it’s hard see how a few select words, according to the FCC, the “f-word and other words as highly offensive as the f-word” (i.e., George Carlin’s seven dirty words), can be used in an FCC-acceptable context in broadcast radio or TV.Safe Harbor and Self-Censor: But you say you’ve heard naughty words on the radio or broadcast TV in an intentional and not “fleeting” manner? That was probably between 10 p.m. and 6 a.m., the FCC’s “safe harbor” time when indecent and profane (but not obscene) language may be used. Or you’ve seen the opposite – you’re watching a “Frasier” rerun on the Hallmark cable channel and they bleep out a certain word for a person’s rear end that was in the original broadcast version. Well, no station has to allow the maximum allowed by the FCC, and some stations deem their viewer’s sensibilities as more tender than others, and are free to be as tame as they like.Living in the internet age with all the blurring of media types makes me wonder how long these rules will remain workable, and the impact of certain words changes with time (one of Carlin’s seven words from 1972 probably does not run afoul of the FCC anymore), but that’s where we are at the close of 2017.

Matt Kenna practices environmental law and can be reached at matt@kenna.net. You can also listen to him not swear on his indie rock radio show on KDUR from 3-5:30 p.m. most Wednesdays.

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